Prime Minister Justin Trudeau hugs Veterans Affairs Minister Seamus O'Regan after making a formal apology to individuals harmed by federal legislation, policies, and practices that led to the oppression of and discrimination against LGBTQ2 people in Canada, in the House of Commons in Ottawa, Tuesday, Nov.28, 2017.

Image Credit: THE CANADIAN PRESS/Adrian Wyld

December 12, 2017 - 7:00 AM

OTTAWA - A federal plan to destroy the criminal records of people convicted of same-sex activity is a "troubling feature" of proposed legislation intended to help make amends to the LGBTQ community, say four researchers who have done extensive work on the subject.

The Liberal government recently introduced legislation that would allow people to apply to have their criminal convictions for consensual sexual activity between same-sex partners erased from the public record.

The bill was accompanied by a formal apology by Prime Minister Justin Trudeau in the House of Commons to the LGBTQ community for historic injustices that ruined careers and lives.

While the researchers applaud the idea of ensuring the criminal records can never be used against those convicted, they say preservation is integral to the democratic process and the telling of history.

"It could actually involve deleting specific names and references from certain documents," said Gary Kinsman, professor emeritus in sociology at Laurentian University. "There's various ways in which it could be done, so that we still have the historical record but there's no way that this information can be used against people."

Kinsman co-authored a brief outlining concerns about the "flawed bill" with Patrizia Gentile, an associate professor of human rights and sexuality studies at Carleton University, Tom Hooper, a history lecturer at York University and Steven Maynard, an adjunct professor of history at Queen's University.

The academics say the scope of offences covered by the bill is too limited, and the application process too vague and potentially onerous.

Despite the concerns, the group was denied a chance to make a presentation on the legislation Monday at the House of Commons public safety committee, Kinsman said.

The committee passed the bill without amendment, sending it back to the Commons after hearing witnesses from Public Safety Canada, the Parole Board and the RCMP.

The researchers are concerned the customary process of soliciting input and amending a bill to address shortcomings is being overridden in favour of swift action to back up the government's apology.

"We're listening and that's why we study this at committee," said Boissonnault, special adviser to the prime minister on LGBTQ issues.

New Democrat MP Randall Garrison indicated during the committee meeting that he was aware of the researchers' concerns. "I think the things that are perceived to be wrong are fixable," he said.

The Expungement of Historically Unjust Convictions Act would provide for the destruction and removal of records for the offences of gross indecency, buggery and anal intercourse.

Once passed, the legislation will allow applications by the convicted individual in question or family members of deceased people with criminal records. A guardian, lawyer or other "appropriate representative" may also apply on behalf of a dead individual.

The bill gives the Parole Board of Canada authority to order or refuse expungement of a conviction. For instance, the board may return incomplete applications.

Once the board approves an expungement, it must notify the RCMP and the courts. In turn, the Mounties must inform other federal agencies and provincial and municipal police forces.

The four researchers say the bill is problematic because it:

— could entail costs for applicants who are required to make a reasonable effort to track down documentary evidence;

— deals only with convictions, not the trail of arrest records, police statements and court documents;

— represents just a fraction of the Criminal Code offences used to prosecute same-sex behaviour, omitting categories such as bawdy house laws aimed at bathhouses and indecent act provisions for arresting people in bars, parks and washrooms.

Boissonnault said the government is "mindful of the bawdy house provisions, and it's something that we're looking at."

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